Commonwealth v. Smith

FLAHERTY, Justice,

dissenting.

Appellant contends that the prosecutor, during closing argument to the jury, improperly mentioned suppressed physical evidence, and that such a reference warrants a new trial. Initially, defense counsel, during closing remarks, argued to the jury that if the alleged fatal beating had occurred in appellant’s apartment then one could assume that evidence of such a struggle would have been offered by the Commonwealth. Such evidence did, in fact, exist, but *523had been ruled inadmissible, upon defense counsel’s motion, by the suppression court on grounds that the evidence was obtained by means of a search conducted without a warrant. Following this improper argument by defense counsel, the prosecutor stated during closing argument, “[w]ell, let me tell you that because of a ruling prior to trial, we cannot introduce that evidence.” Defense counsel objected to this remark, and the trial court instructed the jury as follows:

“Now, Ladies and Gentlemen of the Jury, a statement has been made by the defense in his argument to you that the Commonwealth didn’t present evidence of items from the apartment of the Defendant. Now, the Court informs you that, for reasons that are not involved here at all in this particular trial, you are not to concern yourselves with the fact that the Commonwealth didn’t so present any evidence of that. Just strike it out of your minds.”

Appellant contends that the instruction was insufficient to cure the prejudicial effect of the prosecutor’s comment. Under certain circumstances, allegedly improper prosecutorial remarks may be regarded as being in fair response to defense argument so that a new trial would not be required. Commonwealth v. Brown, 490 Pa. 560, 417 A.2d 181 (1980). Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). However, where the unavoidable effect of the remarks would be to prejudice the jury, a new trial is required. Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968). In the instant case, the prosecutor’s reference to the suppressed evidence would strongly have prejudiced the jury in favor of deductions not legitimately to be derived from the admissible evidence. Evidence that is suppressed is not to be drawn to the jury’s attention, and mention of such evidence nullifies the effect of the suppression in a manner that could not, under the circumstances, have been cured by an instruction from the court. Thus, notwithstanding the impropriety of defense counsel’s remark, the prosecutor’s reference to suppressed evidence further polluted the trial. I would, therefore, grant a new trial.